Bipartisan Legislative Compromise Only Way Forward on Net Neutrality

February 7, 2017

Correction: A previous version of this release quoted former FCC chief economist Tim Brennan calling the FCC “an economics free zone.” His original quote referred specifically to the 2015 Open Internet Order, not the agency as a whole.

“Congressional Democrats have obstructed net neutrality legislation since 2014 — but it’s not too late to change course,” said Berin Szóka, President of TechFreedom. “Even with a Republican-controlled White House, Congress, and FCC, Rep. Greg Walden still wants to work with Democrats on a lasting compromise. This decade-long battle has always been first and foremost about the FCC’s increasingly broad claims of legal authority. And despite what you heard today, that fight isn’t over: yes, a three judge panel upheld the FCC’s rules, but a scathing dissent laid out a road map for the Supreme Court, if not the full D.C. Circuit, to block Title II. Resolving the FCC’s legal authority in Congress would finally put this polarizing, partisan issue to rest.”

Sen. Markey attacked the FCC for closing its investigation into free data offerings by broadband providers. In response to concerns raised by Markey and other Democratic Senators, the Obama-era FCC had begun reviewing free data plans on a case-by-case basis. And in January, the FCC sent them a report concluding that free data plans offered by Verizon and AT&T “likely” violated the 2015 Open Internet Order because the per-gigabyte rates charged participating content providers exceeded the cost of providing service — even while admitting that the FCC lacked enough evidence to reach a full conclusion.

“Banning free data doesn’t help consumers,” continued Szóka. “Yes, of course, a wireless carrier favoring its own services over its rivals’ can be anti-competitive — but that’s why we have antitrust laws! The last FCC was so obsessed with price regulation that it failed to note the dynamic effects of free data offerings: early reports showed T-Mobile users consumed more, not less, data because of BingeOn. By the same token, content providers who don’t pay to have their services exempted from data caps can still reach consumers, and consumers will have that much more data available to use their services. And consumers can and do switch between wireless providers — constraining how much broadband providers can charge. Yet the FCC ignored all these effects, taking a purely static approach to Verizon and AT&T’s offerings — the kind of approach Tim Brennan, the FCC’s former chief economist and a Democrat, had in mind when he called the agency’s 2015 Open Internet Order an ‘economics-free’ zone.”

“Yes, net neutrality is going to change, but consumers will still be protected,” concluded Szóka. “Undoing the FCC’s claims of legal authority will simply mean that net neutrality concerns will have to be substantiated with real evidence — by the FTC, state attorneys general, and private plaintiffs. If Democrats want the FCC back on the broadband beat, they’ll need to negotiate a way to require the FCC to pay more than lip service to basic economics. Moving past net neutrality will allow the FCC to focus on the many thorny problems facing those building next-generation broadband networks. Pai’s just announced Broadband Deployment Advisory Committee will shift the agency’s focus: instead of just talking about better service, the FCC will be doing something about it.”

Tech Freedom is a non-profit, non-partisan technology think tank launched in 2011. TechFreedom is excited about the future. Focusing on issues of Internet freedom and technological progress, we work to protect innovation and discovery from powers that fear change. Technology is the great driver of social progress and human well-being, and we aim to keep it that way.